Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Revival of Lawsuit Over Expulsion Sparks Harsh Dissent

Over the sharp dissent of one of its members, a full federal appeals court has declined to reconsider a decision that revived a lawsuit on behalf of a Louisiana student who was expelled and denied alternative education after she attended a school dance under the influence of marijuana.

"In an exercise of raw advocacy for one party over another, [the three-judge] panel has come to the rescue of Morgan Swindle, who was properly kicked out of school after smoking dope, at the expense of Superintendent Randy Pope, who did nothing wrong but is now personally on the line for money damages," Judge Jerry E. Smith wrote in his Nov. 4 dissent.

The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, voted 11-5 not to reexamine the case, with Judge Smith writing his dissent only for himself.

In September, a three-judge panel of the court unanimously reversed summary judgment in favor of the Livingston Parish school district and Pope on one issue in the lawsuit on behalf of Swindle. The student was an 8th grader in October 2005 when she left a school dance to smoke marijuana.

After returning to the dance, Swindle was caught dancing under the effects of the drug. At Pope's recommendation, she was expelled by the school board after a full hearing. Swindle's parents then sought to have the district provide her with alternative education during her expulsion.

The appeals court panel said the family was denied notice and a hearing over the decision not to provide alternative education. When Swindle was readmitted to school the following fall, she was required to repeat 8th grade.

"We conclude that [Swindle] was entitled to some kind of notice and hearing, either prior to or soon after she was deprived of her right to continued education, and that in this case she was afforded neither," the panel said in its Sept. 8 decision in Swindle v. Livingston Parish School Board. The panel said that Swindle had a right to alternative education "recognized and protected by state law."

The panel concluded that Pope, the superintendent, was not entitled to summary judgment on the basis of qualified immunity because case law "unambiguously" required him to allow the student to present her side of the story before denying her alternative education in an expulsion.

Late last week, in his dissent from the full 5th Circuit's refusal to reconsider the case, Judge Smith said the panel's decision "puts this superintendent in jeopardy for an objectively reasonable, good-faith decision."

The superintendent had no reason to think that a separate due-process hearing was required for the Swindle family's alternative education request, Smith said.

"The [panel] opinion confounds the law of qualified immunity by expecting next-to-impossible prescience as to what a randomly chosen panel of this court might expect a school official to do in order to avoid personal monetary liability in a complex situation to which no court has even remotely spoken," Judge Smith said.

Smith's outrage permeates his 18-page dissent, and he concludes by saying that the "panel opinion is a shameless exercise in appellate advocacy on behalf of an undeserving party at the expense of a well-intentioned school official who has done no wrong."

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